the exclusive possession, and the toll house not being parcel of any premises RECOVERY AND occupied by his employer. R. v. Camfield, R. & M. C. C. R. 42. XV. Recovery and Application of Penalties. STAT. 4 Geo. IV. c. 95, s. 83, enacts, "That in all cases in which, by the said recited act [3 Geo. IV. c. 126], any penalty or forfeiture, by that or any other act or acts for making or maintaining any turnpike road imposed, is made recoverable by information before a justice of the peace, it shall and may be lawful for any justice (a) of the peace to whom complaint shall be made of any offence against any such act, or the said recited act, or this act, to summon the party complained against before him, and, on such summons, to hear and determine the matter of such complaint, and, on proof of the offence, to convict the offender, and to adjudge him to pay the penalty or forfeiture incurred, and to proceed to recover the same, although no information in writing shall have been exhibited or taken by or before such justice; and all such proceedings by summons without information shall be as good, valid, and effectual, to all intents and purposes, as if an information in writing was exhibited." APPLICATION OF PENALTIES. Justices may proceed by summons in the recovery of penalties. ties. By the 3 Geo. IV. c. 126, s. 141," All penalties, forfeitures, and fines Recovery and apby this act inflicted or authorized to be imposed (the manner of levying and plication of penalrecovering and applying whereof is not herein otherwise directed), shall, upon proof and conviction of the offences respectively, before any justice of the peace for the county, riding, or place where the offence shall have been committed, (as the case may require), either by the confession of the party offending, or by the oath of any credible witness or witnesses (b) (which oath such justice is in every such case hereby fully authorized to administer), be levied, together with the costs attending the information and conviction, by distress and sale of the goods and chattels of the party or parties offending, Distress and sale. by warrant under the hand and seal of such justice (which warrant such justice is hereby empowered and required to grant), and the overplus (if any) after such penalties, forfeitures, and fines, and the charges of such distress and sale are deducted, shall be returned, upon demand, unto the owner or owners of such goods and chattels; and in case such fines, penalties, and Commitment. forfeitures shall not be forthwith paid upon conviction, then it shall be lawful for such justice to order (c) the offender or offenders so convicted to be detained and kept in safe custody until return can be conveniently made to such warrant of distress, unless the offender or offenders shall give sufficient security, to the satisfaction of such justice, for his or their appearance before such justice, on such day or days as shall be appointed for the return of such warrant of distress, such day or days not being more than seven days from the time of taking any such security, and which security the said justice is hereby empowered to take, by way of recognizance or otherwise (d); but if, upon the return of such warrant, it shall appear that no sufficient distress can be had thereupon, then it shall be lawful for any such justice of the peace as aforesaid, and he is hereby authorized and required, by warrant or warrants under his hand and seal, to cause such offender or offenders to be committed to the common gaol or house of correction of the county, riding, or place where the offender shall be or reside, there to remain, without bail or mainprize, for any time not exceeding three calendar months, unless such penalties, forfeitures, and fines, and all reasonable charges attending the same, shall be sooner paid and satisfied; and the monies arising by such Application of penalties, forfeitures, and fines respectively, when paid or levied, if not penalty. (a) A justice may act though a trustee or creditor. See ante, 122-125. (b) As to such witnesses, post, 209. (e) This order may be by parol. Still 7. Watts, 7 East, 533. Ante, Commit- (d) See stat. 5 Geo. IV. e. 18, tit. APPLICATION OF PENALTIES. RECOVERY AND otherwise directed to be applied by this act, shall be, from time to time, paid, one moiety thereof to the informer or person suing for and recovering the same, and the other moiety to the treasurer or treasurers to the trustees or commissioners for repairing and maintaining the road on which such offence shall have been committed, and applied and disposed of for the purposes of such road, and of this act." 3 Geo. 4, c. 126. Damages and charges in case of disputes to be set addition to penal ties. Stat. 4 Geo. IV. c. 95, s. 69, enacts, that where by that act, or by stat. 3 Geo. IV. c. 126, "Or any act for making or maintaining any turnpike tled by justices in road, any damages or charges are directed or authorized to be paid or recovered, in addition to any penalty or penalties for any offence or offences, the amount of such damages or charges, in case of dispute respecting the same, shall be settled, ascertained, and determined by the justice or justices of the peace by or before whom any offender shall be convicted of any such offence or offences, who is hereby authorized and required, on non-payment thereof, to levy such damages or charges by distress and sale of the offender's goods and chattels, in manner directed by the said recited act [3 Geo. IV. c. c. 126], for the levying of any penalties or forfeitures." Penalties when recoverable by action, &c. (a) By stat. 3 Geo. IV. c. 126, s. 143, " Every prosecutor or informer shall sue for and recover any forfeiture or penalty imposed by this or any other act or acts of Parliament made for erecting turnpikes or for repairing and amending turnpike roads, in the manner hereinafter mentioned; (that is to say), if the same shall exceed the sum of 201. or upwards, it shall be recoverable by action (a) of debt in any of his Majesty's Courts of record, in which it shall be sufficient to declare that the defendant is indebted to the plaintiff in the sum of being forfeited by an act passed in the third year of the reign of his Majesty king George the fourth, intituled " An Act,” [here set forth the title of this act, if the offence shall be committed under it, or, "An Act," &c. setting out the tittle of the act under which the penalty shall be claimed]; and the plaintiff, if he recover in any such action, shall have full costs, provided that there shall not be more than one recovery for the same offence, and that twenty-one days' notice (b) be given to the party offending, previous to the commencement of such action, and that the same be brought and commenced within three calendar months after the offence When recoverable for which such action is brought shall have been committed; and if such only by conviction. penalty or forfeiture shall not exceed the sum of 20%., and shall be more than 57., the same shall be recoverable only by information before a justice of the peace, subject to appeal in manner hereinafter mentioned; and if such penalty or forfeiture shall not exceed the sum of 5l., the same shall in like manner be recoverable only by information before a justice of the peace, and no writ of certiorari to remove the same shall be allowed." Sect. 54 enacts, "That in case any toll collector or person acting as abscond, penalties such shall offend against any of the provisions of this act, whereby any penalty shall be incurred, and shall abscond or absent himself so as not Notice of action (b). Limitation of. Certiorari. If toll collectors to be levied on lessees of tolls. (a) A prosecution for a penalty is the only mode of proceeding against a collector for extortion, no action lies. See 4 Geo. IV. c. 95, s. 50, ante, 143. The general turnpike act, 13 Geo. III. c. 84, s. 13, having given a penalty to be recovered by information before justices of the peace, or by action for using a greater number of horses than is thereby allowed for the draft of waggons, &c. on the roads, and the 19th section having provided, that if it appear on oath, to the satisfaction of any justice of the peace, or court of justices, that the carriage could not be drawn with the ordinary number of horses, by reason of deep snow or ice, such justice of peace or court may stop all proceedings before them respectively; it was held, that such application for a stay of proceedings must be made to the court in which the action was brought, and that the defence is not available at Nisi Prius. Robinson v. Pocock, 11 East, 484. (b) See Towsey v. White, 5 B. & C. 125; 7 D. & R. 810, and sect. 65, ante, 126. A notice of action under an act of Parliament against a toll gate keeper, "for demanding, and taking of the plaintiff toll for, and in respect of, certain matters and things particularly mentioned, and exempted from the payment of toll in and by a certain act of Parliament, intituled, &c." is uncertain and bad. Freeman v. Line, 2 Chit. Rep. 672. to be found, then it shall and may be lawful for any justice of the peace RECOVERY AND before whom any such toll collector or person shall have been convicted APPLICATION of any such offence, in case of such collector or other person absconding OF PENALTIES. after conviction, or in case of his or her absconding previous to convic- 3 Geo. 4, c. 126. tion, then for any other justice of the peace acting for the county, on an examination of the circumstances, and ascertaining, by the examination of witnesses, that such offence has been committed by the person absconding, to order and adjudge that the penalty incurred as aforesaid shall be paid by the lessee or farmer of the tolls under whom such collector or other person shall act; all which penalties shall be levied and recovered from such lessee or farmer, and applied in manner hereinafter directed." As to irregularity in distresses, &c., see infra. Sect. 137, enacts, "That no conviction shall be had or made by virtue of this act, unless upon the view of a justice convicting, or on confession of the party accused, or upon the oath of one or more credible witness or wit nesses. See further as to witnesses and evidence, post, 208, 209. The 9 Geo. IV. c. 77, s. 18, enacts, "That no person or persons shall or may be convicted of any offence or offences contrary to the provisions of this act, or of the said recited acts [3 Geo. IV. c. 126, 4 Geo. IV. c. 95, and 7 & 8 Geo. IV. c. 24], or of any local turnpike act, in a summary way, before any justice or justices of the peace, after the expiration of six months from the time when any such offence or offences shall or may have been committed." XVI. Actions, Limitation of, Tender of Amends, and Costs. Irregularity in distresses, &c. Conviction to be on view of justice or oath or confes sion. To be in six months. As to when trustees are personally liable, and may be sued, see ante, 134-5. By and against As to when they may sue and how, see ante, 137-8. As to actions by trustees for subscriptions, see ante, 155. As to when surveyors and other officers may be sued, see ante, 140. trustees. Officers. As to actions against mortgagees for continuing in possession after debt Mortgagees. satisfied, see ante, 172, 173. As to actions for extortion, see ante, 143. As to actions for a special injury by obstruction, see ante, 76. Extortion. As to actions for penalties, and the notice and limitation thereof, see Penalties. ante, 206. As to evidence and witnesses, see post, 208-9. Evidence and wit nesses. Distress not unlawful, ab initio. By 3 Geo. IV. c. 126, s. 144," Where any distress shall be made for any sum or sums of money to be levied by virtue of this act, or any other act for repairing, amending, or maintaining any turnpike road, the distress itself shall not be deemed unlawful, nor the party or parties making the same be deemed a trespasser or trespassers on account of any default or want of form in any proceeding relating thereto; nor shall the party or parties distraining be deemed a trespasser or trespassers, ab initio, on account of any irregularity which shall be afterwards done in making the distress; but the Action on the case given. person or persons aggrieved by such irregularity may recover the satisfaction for the special damage in an action on the case: provided always, that Tender of amends, no plaintiff or plaintiffs shall recover in any action for such irregularity, («). trespass, or wrongful proceedings, if tender of sufficient amends (a) shall be made by or on behalf of the party or parties who shall have committed or caused to be committed any such irregularity or wrongful proceedings, before such action brought; and in case no such tender shall have been made, (a) Under the highway act, 13 Geo. III. c. 78, in which powers for getting materials are given to the surveyors; it was held, that where surveyors had made a new way to carry materials, and, after action brought, had paid money into court as amends, the sufficiency of ACTIONS, LIMI- 3 Geo. 4, c. 126. Limitation of actions. General issue. Treble costs. Notice of action. Costs of trustees. Order and proceedings to be entered in books, which shall be open for inspection. it shall and may be lawful for the defendant in any such action, by leave of the court where such action shall depend, at any time before issue joined, to pay into court such sum of money as he or they shall see fit; whereupon such proceedings, or orders and judgment, shall be had, made, and given in and by such court as in other actions where the defendant is allowed to pay money into court." Sect. 147, enacts, "That if any action or suit shall be commenced against any person or persons for any thing done in pursuance of this act, then, and in every such case, such action or suit shall be commenced or prosecuted within three months after the fact committed, and not afterwards; and the same and every such action or suit shall be brought in the county or place where the cause of action shall have arisen, and not elsewhere (a); and the defendant or defendants in every such action or suit, shall and may plead the general issue, and at the trial thereof give this act and the special matter in evidence; and if the matter or thing complained of shall appear to have been done under the authority and in execution of this act, or if any such action or suit shall be brought after the time limited for bringing the same, or be brought and laid in any other county or place than as afore mentioned, then the jury shall find for the defendant or defendants; and if the plaintiff shall become nonsuit, or discontinue his or her action after the defendant shall have appeared, or have a verdict against him or her, or if, upon demurrer, judgment shall be given against the plaintiff, the defendant shall and may recover treble costs, and have the like remedy for recovery thereof as any defendant or defendants hath or have in any cases by law." A notice of action is required, when proceeding against an offender for a penalty, see ante, 206; but not in other cases, except against a magistrate. The 4 Geo. IV. c. 95, s. 61, enacts, "In case any action, suit, or prosecution, shall be brought or commenced against any such trustee or commissioner, for any thing done by virtue or in pursuance of the said recited act of the third year of his present Majesty [c. 126], or this act, or any such act for making or maintaining any turnpike road, all the costs, charges, and expenses of defending such action, suit, or prosecution, or which such trustee or commissioner shall incur in consequence thereof, shall be defrayed out of the tolls arising on the turnpike road for which such trustee or commissioner shall act." See Wormwell v. Hailstone, 6 Bing. 668; ante, 138. XVII. Evidence, Witnesses, and Oaths. THE 3 Geo. IV. c. 126, s. 72, enacts, "That all orders and proceedings of the trustees or commissioners of every turnpike road, together with the names of the trustees or commissioners present at every meeting, shall be entered in a book or books to be kept by the clerk to the said trustees or commissioners for that purpose, and be signed by the chairman of the meeting or meetings at which such orders or proceedings shall be from time to time made or had; and that such book or books shall be open at all season (a) See Basing v. Skelton, 5 T. R. 16. Where a statute enacted, "that no action should be commenced against any person, for any thing done in pursuance of the act, until twenty-one days' notice should be given to the clerk of the trustees, or after sufficient satisfaction or tender thereof made to the party aggrieved, or after six calendar months next after the fact committed, and that every such action should be brought in the county or place where the matter should arise, and not elsewhere, and the defendant should and might at his election, plead specially, or the general issue not guilty, and give evidence that the same was done in pursuance and by the authority of that act."-In assumpsit against the toll collector, to recover the amount of tolls improperly collected by him; held, that the venue should have been laid in the county where the tolls were collected, and that the defendant was entitled to twenty-one days' notice of action. Waterhouse v. Keen, 6 D. & R. 257; 4 B. & C. 200, S. C. able times to the inspection of any of the trustees or commissioners, without fee or reward; and such orders and proceedings, so entered and signed by the chairman of such meeting or meetings as aforesaid, shall be deemed and taken to be original orders and proceedings; which said book or books, as well as the book or books in which the oath or affirmation directed to be taken by the said trustees or commissioners shall be entered, and also the book or books directed to be kept for registering mortgages and assignments, and all entries in such books respectively, shall and may be read in evidence in all courts whatsoever, in all cases of appeal, and in all prosecutions, suits, and actions whatsoever." The 9 Geo. IV. c. 77, s. 2, enacts, "That all books kept for registering mortgages, or assignments, and all entries therein, and all books containing the accounts and proceedings of the trustees in the execution of any local turnpike act, kept according to the directions and provisions of any such act, or of the said recited act of the third year of the reign of his present Majesty [c. 126] or of this act, and made evidence thereby, shall be admitted in evidence in all courts, and by all judges, justices, and others, without proving the facts therein contained, unless such facts, or any of them, shall be first controverted, notwithstanding any former act, under the provisions of which such books may have been originally kept, may be repealed; and all such books shall be preserved and kept by the clerk for the time being of such trustees, and shall at all seasonable times be open to the inspection of the said trustees, and of any creditor or creditors of the tolls, without fee or reward; and the said trustees and creditors, or any of them, shall and may take copies of or extracts from the said book or books, or any part or parts thereof respectively, without paying any thing for the same; and in case the clerk to the said trustees shall refuse to permit, or shall not permit, the said trustees, or such creditors, or any of them, to inspect the said book or books, or to take such copies or extracts as aforesaid, such clerk shall forfeit and pay any sum of money not exceeding 5l. for every such offence." The 3 Geo. IV. c. 126, s. 134, enacts, "That in all cases where any action shall be brought by or against any trustee or trustees, or commissioner or commissioners of any turnpike road, evidence of such trustee or trustees, commissioner or commissioners, having acted as such, together with the act of Parliament by which he or they was or were appointed, or the order, or a copy of the order for his or their appointment or election, in case he or they was or were appointed or elected by the trustees or commissioners, shall be sufficient proof of his or their being a trustee or trustees, commissioner or commissioners." And by the same stat. s. 64, ante, 125, if a person be sued for acting as trustee without being qualified, the proof of qualification lies on him. If a person be named in a turnpike act as one of the trustees, and has acted as such, and been recognized as a trustee by the plaintiff, the judge, at a trial of a cause, in which the goodness of his title to act is not the matter directly in issue, will take him to be a good trustee, and will not allow evidence to be given on the part of the plaintiff, to shew that the person has not taken the oath prescribed to be taken by trustees of the road, before they act as such. Pritchard v. Walker, 3 C. & P. 212. The 3 Geo. IV. c. 126, s. 36, enacts, "That if any person or persons Proof of exempshall, by any fraudulent or collusive means whatsoever, claim or take the tion. benefit of any exemption from toll or from overweight, or for using any additional horse or horses, or of any other exemption or exemptions whatsoever in this act contained, every such person shall, for every such offence, forfeit and pay any sum not exceeding 57.; and in all cases, the proof of exemption shall be upon the person claiming the same." Witnesses]-By 3 Geo. IV. c. 126, s. 137, "Any inhabitant of any Inhabitants. parish, township, or place, in which any offence shall be committed contrary to this act, shall not be deemed an incompetent witness by reason of his or her being an inhabitant of such parish, township, or place; and |